Crime & Courts

Did officer act reasonably when he shot swatting victim is a key legal question

Police release body camera video from shooting linked to 'swatting'

Warning Graphic Content: Wichita Police Department releases the body camera video of officer-involved shooting. Police say the man shot was a victim of swatting. (Video by Wichita Police Department)
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Warning Graphic Content: Wichita Police Department releases the body camera video of officer-involved shooting. Police say the man shot was a victim of swatting. (Video by Wichita Police Department)

The Wichita police officer who fired the bullet that killed an innocent victim of a hoax appears to have shot prematurely, says a police and legal expert who has reviewed body-camera video and circumstances of the shooting.

According to experts interviewed this past week, a key question is why one of the officers at the scene perceived enough of a threat to shoot when others didn’t.

That fact alone raises the question of whether the shooting meets the “reasonableness” standard used to test whether an officer’s shooting is legally justifiable, they said.

One police consultant, however, said a single shot isn’t necessarily an issue – that it’s possible that the officer fired because his vantage point put him in the one position to see a threat and act as he thought was necessary.

The Wichita Police Department did not return messages seeking comment for this story.

The family of the man killed on the evening of Dec. 28 – 28-year-old Andrew “Andy” Finch – says the shooting was unjustified.

The Wichita Police Department has said that the officer – responding with other officers to what was dispatched as a hostage situation – fired after Finch first raised his hands then lowered a hand toward his waist after stepping onto his front porch from inside the house. Finch was unarmed.

Wichita police also have said that they are limited in what they can disclose because the shooting remains under investigation.

Finch was the victim of what’s known as “swatting,” where someone falsely reports an emergency like a hostage situation to draw police to an address.

Around 400 swatting cases happen each year and the consequences can be deadly.

The Eagle asked Delores Jones-Brown, a retired professor at New York’s John Jay College of Criminal Justice who spent a decade teaching NYPD officers, to view the 8-second clip of officer-body-camera video of the shooting released by the Wichita department. Police Chief Gordon Ramsay said that video provides the clearest view of the shooting. The city has not released any other video.

“It does appear to show one of the arms of the target swing downward,” Jones-Brown said in an email.

Still, she said, “If that arm movement is being used as the justification for the single shot, it does not answer the question of why no other officer fired. I also notice that there do not appear to be any officers or civilians who appear in the ‘line of fire’ if in fact the target had a weapon.

“That being the case, it seems, at least, premature for the officer to have fired,” she said.

Under many police agencies’ policies, officers should, if possible, take cover before using deadly force, Jones-Brown said. “In this case, the officers appear to have already shielded themselves from the possibility of being shot if the target was armed,” she said.

The officer who fired the fatal shot was next to a pickup truck.

In her view, she said, “it was too soon to shoot not knowing what the arm movement meant.”

“The fact that no other officers shoot at that time, supports the notion that they felt sufficiently shielded,” Jones-Brown said.

A number of questions remain:

How many officers were there, and how were they positioned? Were they following policy? Did the officer who fired the shot have a better view than the others? Did the officer fear that the man on the porch posed an immediate threat to hostages who reportedly remained inside or to officers outside? Why didn’t officers realize discrepancies: that the person calling in the hoax to 911 was talking to a dispatcher around the time that the man on the porch appeared to have no phone, and that the caller gave a different description of the house than what officers saw?

Wichita police converged on a house at 1033 W. McCormick on Dec. 28, responding to fake 911 call. Here’s a breakdown of how the call and police actions occurred.

Ramsay told The Eagle that all of the personnel at the scene were patrol officers, not members of the SWAT unit that has special training and equipment for hostage situations. It was too early in the emergency to deploy SWAT that evening, he said.

Finch was shot about six minutes after the first officer arrived.

The background

The hoax allegedly grew out of online gaming in which someone placed a prank call from California, initially to the security desk at Wichita City Hall, using a fake or “spoofed” phone number with a local area code. The caller gave the address where Finch lived with his family – just east of Seneca on McCormick. It’s a busy intersection just south of Kellogg. Finch wasn’t involved in the gaming. The caller claimed that he had shot one person and had other hostages inside and was thinking of setting the house on fire.

The California man arrested on suspicion of calling in the hoax, 25-year-old Tyler Barriss, will be brought to Wichita to face his charge.

The officer shot a single round from an AR-15 rifle. It uses high-velocity .223-caliber ammunition. As a rifle, it can be much more accurately fired from a longer distance than a handgun.

The officer fired almost straight from north to south. The distance from which it was fired to Finch: about 40 yards.

Officers were shouting multiple commands at Finch from more than one position. From where the shooting officer was positioned – next to a pickup truck backed into a driveway – the bullet traveled across a sidewalk, five lanes of the street, over the front yard of Finch’s home and onto the porch.

Residents along McCormick told The Eagle that they didn’t know anything was occurring until they heard a gunshot. They looked outside and saw officers with guns drawn – mostly handguns – converging on Finch’s house. Police had blocked off the street.

The police video comes from the body camera of an officer next to the officer who fired. It shows what appears to be emergency lights reflecting off the pickup and car in the driveway across from Finch’s two-story, 118-year-old house. In quick succession, someone on the camera audio says loudly and clearly, “Show your hands!” then “Walk this way!” Someone then blurts out an expletive, followed by a string of words that aren’t clear. Then someone starts to give another command, “Walk …” But before the command is completed, the gun fires. The end of the rifle barrel is visible.

Related stories: Who should question possible swatting calls: 911, police or both? | Police interviewing others in fatal swatting case, Wichita police chief says | Swatter was still talking to 911 at least 16 minutes after Wichita man was shot

 

Throughout the video, Finch appears as a hazy image across the street on the porch. A marked police car is in the driveway between Finch’s house and a closed restaurant. No officers are visible in the video.

A woman who lives in an apartment above where the officer fired said she heard a gunshot as she put a meal into the oven. Seconds later, she looked to the southwest, where she saw a female officer with a handgun drawn behind a patrol car that blocked McCormick, just east of the busy intersection at Seneca. The woman said she also saw two or three officers clustered on the far side of the restaurant building next to Finch’s house. From her position, she couldn’t see any other officers.

Was it reasonable?

The legal test for whether an officer shooting is justified is whether it was “objectively reasonable,” said Jones-Brown, a former prosecutor who serves on federal monitoring teams for policing controversies that have played out in Ferguson, Mo., and Newark, N.J.

An officer’s perception, by itself, is not enough to justify a shooting, she said.

For one officer to fire when others didn’t raises the question of whether the lone officer was reasonable, she said. “How could all those guys and gals be the unreasonable person and this one guy be the reasonable one? … The others did not behave the way he did.”

She cited a U.S. Supreme Court decision, Graham v. Connor, which sets out a key question: whether officers’ actions are “‘objectively reasonable’ in light of the facts and circumstances confronting them. ... The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

Still, she said, the court decision “clearly does not support unreasonable split-second decisions.”

Another perspective

Rod Schaeffer has almost 30 years of law enforcement experience, including as a SWAT commander. He serves as a use-of-force consultant for police agencies with Mitigation Dynamics, in Lee’s Summit, Mo.

Schaeffer said he listened to the 911 recording of the hoax call and watched the video. Without knowing all the facts, he said, it’s possible that the officer who fired may have been the one officer who was in a position to perceive a threat and use the force he thought was necessary in that moment. He might have been in the best position to evaluate the situation, and the others “may not have seen what that officer saw,” Schaeffer said.

A 911 caller told police he was holding his mother and little brother hostage in a house in the 1000 block of McCormick. Listen to the 911 call that led to the deadly "swatting" in Wichita. (Video by Candi Bolden)

Apparently the officer thought he saw Finch reaching for something, he said. “That is a split-second decision.”

When an officer feels he has to use deadly force, he is trained to “fire until the threat ceases.”

Schaeffer noted that the rifle was fired at a considerable distance. “At that distance, one shot is probably what he may have felt comfortable with. One shot may have been sufficient in his mind.”

It’s not clear exactly what kind of equipment the rifle might have had to enhance the officer’s ability to fire accurately.

Rifles, he noted, have an important role in emergencies where officers might have to fire from a longer distance.

Attorney’s view

James Thompson, a Wichita attorney and congressional candidate who has sued the City of Wichita over shootings by officers, says the latest shooting is troubling for multiple reasons.

Finch was following commands by initially putting up his hands, and it appeared to Thompson that Finch was shot as he was trying to raise his hands back up. Thompson noted that police maintain that Finch was making a “furtive movement toward his waistband. I don’t see that in the video.” What he sees is Finch’s hands go up, down, then back up.

The fact that only one shot by one officer was fired raises a red flag, Thompson said, because “no other officers thought the guy was a direct threat.” It appears there could have been officers closer to the porch than the officer who fired, he said.

Officers are trained “to fire and keep firing until the threat is neutralized,” he said. “Usually when there is a shot, there are multiple shots.”

The circumstances combine to make Thompson wonder whether it could have been an accidental shooting. “Without more information, it’s hard to say,” he said.

The law rests on whether a reasonable officer in the same position as the officer firing would have taken the same action, Thompson said. “I think the presence of so many other officers that did not fire gives you the impression that it was not reasonable to fire.”

Firearms instructor

Colin Gallagher is a former Wichita police sergeant who works as a firearms instructor, private investigator and legal consultant. Gallagher also focused on the fact that only one officer fired.

That is especially noteworthy, he said, because the officer whose body camera captured the video was next to the officer who fired.

“You have somebody relatively close, almost in the same position, and they did not take the shot.

“Why?”

Officers don’t have to wait on a command to fire, Gallagher said.

“Every time an officer fires a shot, they do so based on what they perceive.”

There also was a risk when the officer fired a rifle straight on at a man on a front porch of house with an open door, Gallagher said. The bullet could have hit someone behind the target inside the house. “All shooters must know ... not just their target but what is behind their target.”

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